House Bill 01-1150 was introduced Jan. 16, 2001 by Rep. Bill Sinclair, co-sponsored by Sen. Dyer (Durango). A tie vote on the third reading of the bill in the House in February effectively stalled the bill. The bill had majority support on the first two readings (see Colorado House Deadlocks on Anti-SLAPP Bill). According to the Coalition of Tri-Lakes Communities website (Feb. 21, 2001), the change in vote was due to last-minute intense lobbying by the Home Builders Association and the State Chamber of Commerce. Updates on Colorado bills are available at Colorado Bills.
POME, a nonprofit organization dedicated to preserving open space, had challenged a developer's plan to build a large commercial and residential complex. The development was approved by the county board of commissioners, and POME sought to overturn the board's decision in a suit alleging, inter alia, that the board had engaged in illegal spot zoning. POME lost, both in the trial court and court of appeal, but was not required to pay attorney fees to the developer. Subsequently the developer sued POME for damages, alleging that POME had abused the legal process when it challenged the county board of commissioner's decision, and thus had caused the developer economic harm. The developer's suit was the subject of this appeal to the state supreme court.
The court established that an action against a defendant arising out of defendant's legitimate petition for redress of grievances under the First Amendment of the U.S. Constitution is subject to summary judgment for the defendant. The court promulgated the following tests for summary judgment in such a case. (1) The court must first determine whether the moving party has presented sufficient facts to permit the court to reasonably conclude that the plaintiff's action is devoid of reasonable factual support or, if so supported, is lacking a cognizable basis in law. (2) If the court finds that this showing has been made, it must then determine whether the plaintiff has presented sufficient facts to permit the court to reasonably conclude that defendant's petition for redress of grievances (the basis for plaintiff's action) was primarily for the purpose of harassment or some other improper purpose.
W.O. Brisben Cos. v. Krystkowiak
Court of Appeal, 2002 (66 P.3d 133)
A real estate developer proposed to build a large apartment complex across the street from Krystkowiak's home. Krystkowiak, a member of and spokesperson for a neighborhood association, continued to contest the development after the neighborhood association allegedly agreed to discontinue its opposition. Brisben sued Krystkowiak for tortious interference with contract and he defended on First Amendment grounds. Applying Protect our Mountain Environment, the trial court dismissed Brisben's claim but refused to award Krystkowiak attorney fees. The appellate court reached the same result and affirmed the trial court's order of dismissal, but held that POME's First Amendment analysis was inapplicable to the case because Krystkowiak waived his constitutional rights. It concluded that the case presented a purely contractual dispute, Brisben's claims could be dismissed under Colorado Rule of Civil Procedure ("C.R.C.P.") 12(b)(5), and that statutory attorney fees were therefore available to Krystkowiak under section 13-17-201, 5 C.R.S. (2003).
State Supreme Court Decision (May 24, 2004) -- The court reaffirms Protect Our Mountain Environment, which generally requires that a First Amendment defense to a retaliatory lawsuit be handled as a motion for summary judgment. The attorney fees statute requires that a defendant recover attorney fees if a tort case is dismissed for failure to state a claim upon which relief can be granted, but not if summary judgment is granted. Here the homeowner is entitled to an award of attorney fees because the tort claim had no basis in law and may be dismissed for failure to state a claim. The fact that the court decided on summary judgment that the developer's retaliatory lawsuit also violated the homeowner's First Amendment rights does not negate application of the attorney fees statute. Therefore, the court affirms the court of appeals' dismissal of the developer's tort claim, and remands the case with directions to return it to the trial court to determine the appropriate attorney fees to award the homeowner. See Krystkoviak v. W.O. Brisben Cos..
Concerned Members of Intermountain Rural Elec. Assoc. v. District Court
Colorado Supreme Court, 1986 (713 P.2d 923)
Action for libel and abuse of process. Plaintiffs brought an action against defendant I.R.E.A. to compel a recall election of four directors and made statements to local newspapers; defendants counterclaimed for abuse of process and libel. The court, in remanding the case, held that under the heightened standard set forth by Protect Our Mountain Environment v. District Court, a judicially created "anti-SLAPP" doctrine, the party bringing the abuse of process claim has the burden of showing that the petitioning activities were not immunized from liability by the First Amendment.